' KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about Shops Nos. 1 and 2 (Survey No, 76)
(hereinafter called the property) and this property) situated in Saify Building, Garden Road, Karachi.
This property became subject-matter of two suits as detailed below :-
(i) Suit No, 340 of 1959 filed by Tahir Ali against Shahul Hamid [present appellant] for profits valued at Rs, 6839 ; for compensation for use of furniture etc. Valued at Rs, 59,000 and for value of the furniture at Rs, 5,000.
(ii) Suit No, 542/59 filed by (1) Ebraimji Hakimji and sons (a firm) and (2) Ismail Tayab Ali, (b) Tahir Ali, (c) Yousuf A li and (d) Hakimji Ghulam Hussain as plaintiffs against Shahul Hamid (present appellant) for ejectment, for damages, for use and occupation valued at Rs, 5400 and future damages at Rs, 150 per month.
2. Both these suits were consolidated and dismissed by the learned Additional District Judge by a consolidated judgment dated 20-4-1964.
3. The plaintiffs concerned in each suit filed two separate appeals (being appeal No, F. A. 72/64 in the first suit) and (F. A. No, 63/64 in the second suit). A Division Bench of the High Court dismissed the appeal of the plaintiffs in the second suit, but accepted the appeal of the plaintiffs in the first suit by their common judgment dated 29-6-1970, and after recording that defendant Shahul Hamid was a tenant of plaintiff Tahir Ali, remanded the case to the learned trial Court for its further disposal on merits on that basis. The plaintiffs in the second suit did not proceed any further thereafter.
4. The defendant Shahul Hamid however has come up in appeal to this Court against the judgment rendered against him by the High Court in First Appeal No, 72/64 pertaining to the first suit mentioned above by special leave which was granted on 13-6-1971 to consider whether the finding of the Courts below that the point that Shahul Hamid (appellant) was tenant of Tahir Ali (respondent) was concluded by res judicata due to a previous judgment of the learned Additional District Judge dated 31-7-1958 ((Exh. D/30) or not.
5. At this place" it may be mentioned that- Shahid Hamid (present appellant) filed a suit being Suit No, 98 of 1956 against (i) Ebrahimji Hakimji and sons and (ii) Tahir Ali, for a declaration that he was not a mere licensee of Tahir Ali, but a regular tenant, and therefore his contemplated ejectment in certain other proceedings mentioned therein on the ground of his being a license would be illegal.
In that suit the trial Court (learned Additional District Judge)-held that Shahul Hamid was carrying on the business in the suit property in the name and style of "Garden Restaurant", and that he was not merely a Manager of Tahir Ali, but that he had been given over the Restaurant in question to run it as his own on certain terms and conditions mentioned therein. At this place it is proper to reproduce the relevant portion of the finding of the learned Additional District Judge. He held.
"As I have already discussed the defendants have not examined themselves and the plaintiff in his statement on oath has stated that he was given over this hotel as tenant and that he paid monthly rent although the rent receipts were issued in the name of Tahir Ali. Even assuming that Tahir All was recorded as a tenant of the said hotel by defendant No, 1, it is clear from the facts brought out in evidence and admitted in the pleadings of the parties that the plaintiff became a lessee of defendant No,
2. For purposes of Karachi Rent Restriction Act the tenant has been defined in section 2 clause 7 as under :- ' Tenant means any person by whom or on whose account rent is payable for any premises and includes every person from time to time deriving title under a tenant and also every person remaining in possession of the premises leased to him after the termination of a lease with or without the consent of the landlord.
' Applying this definition to the present case it is clear that the plaintiff becomes the tenant of the defendant No,
2. I shall refer to the order of the learned Chief Judge Small Cause Court dated 3-1- 1954, in which the learned Chief Judge came to the conclusion that the plaintiff was not tenant of defendant No, 1 i.e, the landlord but a lessee of defendant No, 2, Tahir Ali. If he was a lessee of Tahir Ali he clearly derived his title under the tenant and as such would become a tenant within the meaning of clause 7 of section 2 of Karachi Rent Restriction Act.
' My finding therefore is that the plaintiff is a tenant in respect of the premises "Gardon Restaurant" and not merely manager."
' After giving the aforesaid finding the learned Additional District Judge declared the relevant ejectment order which the defendant No, 1 had obtained against Shahul Hamid appellant as illegal and decreed the suit on 31-7-1958.
6. Against the aforesaid judgment and decree the concerned defendants filed an appeal in the High Court being First Appeal No, 64 of 1958 which was however withdrawn by them on 26-1-1961.
The relevant order of the High Court in this respect reads as follows "By consent the appeal is allowed to be withdrawn on the condition that the findings of the trial Court will not be treated as res judicata in any pending or subsequent proceedings between the parties. Parties will bear their own costs."
7. Learned counsel for Shahul Hamid appellant argued that no doubt the judgment and decree of the learned Additional District Judge dated 31-7-1951 Exh. D/30 was in favour of his client who was the plaintiff therein, and that it was held in that judgment that he was a tenant of Tahir Ali, and the ejectment orders procured on the bt.Sis that he was licensee etc. Were illegal, but that finding was such which was confined to that suit alone and was not to be pleaded as res judicata because the other side had withdrawn the appeal by consent of the present appeallant "on condition that findings of the trial Court will not be treated as res judicata in any pending or subsequent proceedings between the parties". It was submitted that withdrawal of the appeal had been allowed to the other side by the High Court and the consent thereto was granted by the present appellant only on the above condition, therefore, the said condition and order was binding on the respondent and he as such was debarred from raising the plea of res judicata and the Courts below acted illegally by accepting the same or going behind the order allowing the withdrawal of the appeal. The High Court repelled this plea in para. 16 of their judgment holding as follows :- "The mere fact that the parties had consented to the withdrawal of their appeal before the High Court and had stated that the finding of the Judge Small Causes Court will not operate as res judicata is of no consequences. The decision of the Judge Small Causes Court on the relationship between Tahir Ali and Shahul Hamid as landlord and tenant is conclusive. In Sri Raja v.
Sarvangnaya Kumara, Krishina Yachendra Bahadur Varu, Rajah of Venkatagiri v. Province of Madras AIR 1947 Mad. 5(2). It was held that :- ' Though the doctrine of res judicata is often treated as a branch of the law of estoppel it is really founded on the public policy of putting an end to all litigation in regard to the same matter or, in the words of Lord Shah in the case above referred to "of setting to rest rights of litigants" and cannot be waived even by the consent of the parties. It was not therefore competent for the parties to agree by their compromise in 0. S. No, 6 of 1934 that the judgment of the trial Court in 0. S. No, 10 of 1910 should not operate as res judicata."
8. Learned counsel presented no legal principle, nor any case law or text to show that the above view of the High Court on the facts and in the circumstances of this case was in any way erroneous warranting interference by this Court and he rested his submission by simply saying that due to the order by which the appeal of the defendant/respondent was disposed of by the High Court, the defendant herein was estopped from raising the plea of res judicata in any subsequent suit to show the status of the appellant as a tenant irrespective of the fact that the present appellant had himself asked for declaration of that status. We have given our anxious consideration to the submission of the learned counsel but find no force in it. The main thin to be taken note off is that section 11, C. P. C. (Act V of 1908) which lays down the principle of res judicata, is mandatory, and as such, a party to former suit decided by a Court of competent jurisdiction, can avoid its provisions only by taking recourse to section 44 of the Evidence Act I o 1872, on ground of fraud or collusion or if we may add by showing that the previous judgment was a nullity or non-existent in the eye of law. In the absence of any such thing a party cannot be estopped from pleading law as contained therein on the well known principle that there can be no estoppel against statute and neither any Court of law, nor any agreement can estop a party to plead law which is lis "inalienable" right under Article 4(1) of the Constitution. Confining ourselves to case where plea of res judicata was not disallowed on grounds of estoppel or prohibition created by any Court order reference may be made, to Robert Watson & Co. v. The Collector of Rajshahye (1), where the former suit was dismissed for the plaintiff's failure to produce evidence, but a direction was given that the plaintiff could institute a fresh proceeding as if no suit had been brought. Nevertheless the Privy Council held that the subsequent suit was barred by res judicata for the
(1) (1869) 13 MIA 160 ' reservation was of no effect. The Privy Council in Fateh Singh and others v. Jagannath Baksh Singh and another (1), again applied the same principle. In that case the earier suit which could have succeeded on a plea of "custom" failed as not pleaded, and was consequently dismissed with liberty to file a fresh suit for possession. So a second suit for possession on "custom" was filed. It was held that the suit was barred by res judicata, since the custom was a matter which might and ought to have been set up in the former suit and that the Court having dismissed the former suit it had no power under Order XXIII, rule 1 (1), C. P. C. To give liberty to bring a fresh suit. In Sukh Lal v.
Bhikhi (2) a suit for possession of immovable property was wholly dismissed, on the ground that the plaintiff had not made out his title to the whole of the property claimed, though he had proved title to a one-third share of such property. The decree included an order in these terms :- 'This order will not prevent the plaintiff from instituting a suit for possession of the one-third interest of Mst.
Lachminia in the fields specified in the deed of sale, "upon which the suit was based. No appeal was preferred from this decree. Subsequently the plaintiff brought another suit upon the same title to recover possession of the one-third share referred to in the order just quoted." It was held by the Full Bench that the Court in the former suit had no power to include in its decree of dismissal any such reservation or order; that the fact that the decree was not appealed against did not give the order contained in it, which was an absolute nullity, any effect : that as in the former suit the plaintiff could have obtained a decree for the one-third share now claimed, and the whole of the claim in that suit was dismissed, the decree in that suit was a decision within section 13 of the Civil Procedure Code ; and the present suit was consequently barred as res judicata". In Fakir Chandra Biswa s and others v. Ekkari Sarkar and others (3) the plaintiff had brought a suit for the recovery of a certain property basing his title on a purchase from the defendant and alleging that the defendant had inherited it from his grandfather as reversionary heir. The suit was dismissed. On appeal, the suit was allowed to be withdrawn with liberty to bring a fresh suit. On revision the High Court set aside the order of the Appellate Court and directed that the appeal to the Lower Appellate Court would stand dismissed but observed that any decision arrived at by the Courts below relating to the title as between the plaintiff and the defendant would not go against the parties in any subsequent suit that might be instituted by the plaintiff. Thereafter, the plaintiff brought another suit on the basis of the same purchase but alleging that the defendant had acquired the property as heir to his father who had got it by a deed of gift from the defendant's grandfather. It was held that the observation in the judgment of the High Court did not preclude the defendant from raising or the Court from considering any plea of res judicata which may be available to the defendant. All this discussion will show that neither a Court can issue any order and nor a party can agree that B with regard to any particular operative judgment that a plea of res judicata will not be raised in any future litigation. Such order of agreement as discussion above would be a nullity and inoperative.
9. It is to be pointed out that the plea of res judicata being of the kind of public policy, the Courts have been allowing the same to be raised even in cases where it may not have been raised in Courts below or may have been abandoned provided material in support thereof is fully available on the record. In the instant case the withdrawal of the appeal was not with
(1) (1925) 52 I A 100 (P (2) I L R 11 All. 187
(3) 42 C W N 564 ' permission to file a fresh appeal and nor was the suit which had been filed by the present appellant and which had been decreed in his favour being withdrawn by him, as he was only a respondent in that appeal. It were the concerned defendants who had challenged the judgment Exh. D/30 but then withdrew the appeal with the result that the aforesaid judgment remained operative in the field against them with regard to the rights of the parties declared therein. If that is so, as it is obvious, then the effect of that judgment was to be regulated by section 11, C. P. C. And any consent of the parties could not destroy that effect or dwindle down its efficacy in case any of them wanted to properly invoke the provisions of the said section. In this context if the respondent herein in a later suit asked the Court to apply section 11 (res judicata) tp that judgment, he could not be debarred from making this request because no body can be estopped from pleading law and any agreement so providing will be against public policy and void under section 23 of the Contract Act as already held above. Looked at from whatever angle the plea raised by the learned counsel cannot be endorsed.
10. The result is that this appeal has no merit and is dismissed with costs.